Potdar, Madhumilind v. Holder Eric H. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2441
MADHUMILIND N. POTDAR,
Petitioner,
v.
PETER D. KEISLER,
acting Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A93-042-676
____________
ARGUED FEBRUARY 28, 2007—DECIDED OCTOBER 10, 2007
____________
Before RIPPLE, MANION and KANNE, Circuit Judges.
PER CURIAM. Madhumilind Potdar, a native and citizen
of India, was ordered excluded from the United States by
an Immigration Judge (“IJ”) on February 3, 1999. He
appealed that order to the Board of Immigration Appeals
(“BIA” or “Board”), which affirmed the IJ’s order on
narrower grounds. He subsequently filed a motion to
reopen his exclusion proceedings with the Board and, on
November 7, 2003, the Board granted his motion and
remanded the case to the IJ. On remand, the IJ concluded
2 No. 06-2441
that he lacked jurisdiction and certified the case back to the
Board. On April 26, 2006, the Board issued a new opinion,
vacating its 2003 order. Mr. Potdar timely petitions for
review of this decision. We conclude that we lack jurisdic-
tion.
I
BACKGROUND
Mr. Potdar first entered the United States without
authorization in 1981. In 1994, he applied for legalization
benefits under the Immigration Reform and Control Act
(“IRCA”), Pub. L. 99-603, 100 Stat. 3359 (1986). See A.R. at
198. While he awaited adjudication of his legalization
application, Mr. Potdar needed to return to India to at-
tend a family funeral. He sought and was granted ad-
vance parole, which allows an alien to leave the United
States temporarily without being deemed to have aban-
doned any pending applications for immigration relief.
After a month in India, Mr. Potdar returned to the United
States and was paroled into the Country for a period of one
year. Three months later, for reasons undisclosed by the
record, the Service1 revoked Mr. Potdar’s parole and placed
1
At these early stages of Mr. Potdar’s immigration history,
his proceedings involved the Immigration and Naturaliza-
tion Service (“INS”). On March 1, 2003, the relevant functions of
the INS were transferred to the Department of Homeland
Security (“DHS”) and divided among the United States Citizen-
ship and Immigration Service (“USCIS”) and other departments
within DHS. See Homeland Security Act of 2002, Pub. L. No. 107-
296, 116 Stat. 2135. For ease of reading, we shall refer collectively
(continued...)
No. 06-2441 3
him in exclusion proceedings. The record does not con-
tain any information about the status of his legalization
application at that time.
Before the IJ, Mr. Potdar moved to terminate exclusion
proceedings. He contended that, because he was a legaliza-
tion applicant who had obtained advance parole prior to
his departure and returned to the United States on the
authority of that advance parole document, he was not an
“arriving alien” upon his return. A.R. at 229-30 (citing
Rosenberg v. Fleuti, 374 U.S. 449 (1963), and Espinoza-
Gutierrez v. Smith, 94 F.3d 1270 (9th Cir. 1996)). Mr. Potdar
attempted to locate evidence of his advance parole grant
from the Service through a series of Freedom of Informa-
tion Act requests; when those requests proved unsuccess-
ful, he substantiated his claim that he did obtain advance
parole with his own affidavit. Counsel for the Depart-
ment of Homeland Security (“DHS”) objected on the
ground that it was Mr. Potdar’s burden to produce the
advance parole document and to demonstrate an entitle-
ment to termination of proceedings. The IJ agreed with
DHS and determined that Mr. Potdar had failed to meet
his burden of proving that he had obtained advance
parole. Based on this determination, the IJ then concluded
that Mr. Potdar’s motion to terminate exclusion proceed-
ings could not be granted. The IJ further concluded that
Mr. Potdar was excludable on three separate grounds: that
he had committed visa fraud, see 8 U.S.C. § 1182(a)(6)(C)(i),
that he was an arriving alien not in possession of a valid
1
(...continued)
to the benefits-granting divisions of these agencies as the
“Service” and the prosecutorial divisions as the DHS.
4 No. 06-2441
immigrant visa, see id. § 1182(a)(7)(A)(i)(I), and that he
was an arriving alien not in possession of a valid non-
immigrant visa, see id. § 1182(a)(7)(B)(i)(II). Accordingly,
the IJ ordered that Mr. Potdar be excluded from the United
States. A.R. at 113.
The BIA affirmed this decision in April 2003, although
on different grounds. The Board first concluded that,
outside the Ninth Circuit, the doctrine announced in
Rosenberg v. Fleuti, 374 U.S. 449 (1963), had no application
to returning legalization applicants like Mr. Potdar, and
therefore he had attempted to “enter” the United States
when he returned from his brief trip to India. However,
unlike the IJ, the Board acknowledged that Mr. Potdar
indeed had been paroled into the United States, but fur-
ther noted that his parole had been revoked. Accordingly,
Mr. Potdar was returned to the status he had held before
he was paroled, i.e., an alien seeking to enter the United
States. On this basis—rather than the failure of Mr. Potdar
to produce evidence of advance parole—the Board held
that Mr. Potdar properly was subject to exclusion proceed-
ings. Addressing the grounds for exclusion, the Board
disagreed with the IJ that the charges of fraud had been
sustained or that the failure of Mr. Potdar to produce a
non-immigrant visa was an adequate ground of
excludability. Because he was seeking legalization, the
Board concluded, Mr. Potdar had immigrant intent, and,
therefore, the final ground of failure to present an immi-
grant visa was the appropriate basis for exclusion.
Mr. Potdar did not file a timely petition for review of the
Board’s final order of exclusion. Instead, he continued to
pursue other avenues of immigration relief. His employer
sponsored him for an employment-based visa and sub-
mitted a labor certification application on his behalf in
No. 06-2441 5
April 2001. After this application was approved, the
employer petitioned for an immigrant visa on his behalf,
and Mr. Potdar applied for adjustment of status.
On the basis of these pending applications, in August
2003, Mr. Potdar moved to reopen proceedings before the
BIA. See A.R. at 61. He requested that proceedings be
reopened so that the Service could consider his pending
applications for an immigrant worker visa and adjust-
ment of status. DHS did not respond to the motion. The
Board ruled in Mr. Potdar’s favor on November 7, 2003;
it granted his motion to reopen and remanded the case
to the IJ. See A.R. at 56.
When the case was before the IJ on remand, Mr. Potdar
again moved to terminate exclusion proceedings. The IJ
construed the remand order from the Board and Mr.
Potdar’s subsequent motion as a request for adjustment of
status by the immigration court. The IJ concluded that he
lacked jurisdiction to entertain an application for adjust-
ment of status for an alien in Mr. Potdar’s circumstances
and certified, sua sponte, the record to the Board.
Upon consideration of the certified record, the Board
held that it had “erroneously granted” Mr. Potdar’s mo-
tion because it lacked authority to grant an application
for adjustment of status to Mr. Potdar. A.R. at 2. It there-
fore vacated its decision granting the motion to reopen.
Mr. Potdar timely petitioned for review of this order.
II
DISCUSSION
A.
Mr. Potdar challenges the Board’s final order, vacating its
prior grant of his motion to reopen.
6 No. 06-2441
The parties dispute the scope of our review. Specifically,
Mr. Potdar contends that, by virtue of the Board’s decision
to reopen the case in 2003, we may now reach all issues
relating to the Board’s initial affirmance of his exclu-
sion order from which he had failed to petition for re-
view in a timely manner. The acting Attorney General
contends that our jurisdiction is limited to the most recent
order denying the motion to reopen.
We conclude that the Board’s order reopening the case
did not resurrect jurisdiction over the issues underlying
the initial exclusion order. When the Board reopened the
case, under this circuit’s precedent, it vacated its order
affirming exclusion and, therefore, rendered Mr. Potdar’s
proceedings non-final. See Gao v. Gonzales, 464 F.3d 728,
729-30 (7th Cir. 2006). It did not, however, reopen for
reconsideration every issue decided in Mr. Potdar’s initial
proceedings. Instead, the Board reopened to consider
new evidence that, despite Mr. Potdar’s excludability,
he may have been entitled to relief from exclusion. The
final order vacating the earlier order to reopen is the final
order from which a timely petition for review was
taken and, therefore, is the only order over which our
jurisdiction extends. See 8 U.S.C. §§ 1252(a)(1), (b)(1), (b)(6).
We examine Mr. Potdar’s challenges only to that order and
to the issues decided in the course of the reopened pro-
ceedings.
B.
In Mr. Potdar’s motion to reopen, the new evidence that
he asked the Board to consider included an approved labor
certification, a pending petition for an employment-based
visa and a pending application for adjustment of status.
No. 06-2441 7
Mr. Potdar claimed that his labor certification, which had
been filed prior to April 30, 2001, entitled him to the
protections of § 245(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1255(i). Mr. Potdar asked for a stay of
removal through the course of his reopened proceedings in
order to permit his “Petition for Alien Worker (form I-140)
and Application to Adjust to Permanent Resident Status
(form I[-]485) [to be] adjudicated by the [Service].” A.R. at
61. On the basis of this request, and without opposition
from DHS, the Board reopened his case “for considera-
tion of an application for adjustment of status.” A.R. at 56.
It is through the lens of the motion to reopen, and the
Board’s initial action on that motion, that the remainder of
the reopened proceedings must be evaluated. The grava-
men of Mr. Potdar’s request to the Board was that the
part of the immigration agency responsible for adjudica-
tion of his applications ought to be given an opportunity
to act prior to his removal from the United States. The
Board apparently agreed. In his reopened proceedings
before the IJ, Mr. Potdar couched the same request in a
motion to terminate exclusion proceedings. Although he
challenged the grounds of exclusion on their merits in
his motion, as he likewise has attempted to do in this
court, Mr. Potdar made clear that his request for termina-
tion of proceedings and the reinstatement of his parole
served a particular purpose: to render his exclusion order
non-final and allow “adjudication of his Legalization
application or any other application for status pending
with the [Service] office.” A.R. at 20 (emphasis added).
Despite the context in which the case was reopened, the
IJ nevertheless construed Mr. Potdar’s submission as a
request that the IJ grant his application for adjustment of
status in exclusion proceedings. The IJ concluded that he
lacked jurisdiction over that matter because aliens subject
8 No. 06-2441
to exclusion proceedings must seek adjustment from the
District Director of the Service rather than before the
immigration courts. See 8 C.F.R. § 1245.2(a)(1); see also
Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1096 (9th Cir.
2004).
In our view, the IJ plainly misapprehended the Board’s
order reopening proceedings. Mr. Potdar did not request
adjustment of status from the IJ; he requested only an
opportunity to pursue that relief through appropriate
administrative channels. Rather than construe the applica-
tion as one for adjustment, the IJ should have considered
whether, to allow administrative adjudication to proceed,
it would have been appropriate to terminate or continue
exclusion proceedings. Mr. Potdar’s request to the IJ
amounted to a request for a continuance. The relevant
point, for our purposes, is that the IJ answered a question
he was never asked; the approach he took to the case
was not responsive to the inquiry the Board had placed
before him in granting Mr. Potdar’s motion to reopen
the proceedings.
When the case returned to the Board on the IJ’s certifica-
tion, the Board did not correct the error. The Board simply
concurred with the IJ that the immigration courts lacked
jurisdiction over an application, which, so far as the rec-
ord reveals, never was filed with the immigration court.
See Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir.
2004) (remanding when BIA’s ground for denying a
motion to reopen was “a non sequitur”).
We must conclude that we have no jurisdiction to review
the denial of the continuance in Mr. Potdar’s case. See Ali
v. Gonzales, ___ F.3d ___, Nos. 06-3240 & 06-3879, 2007 WL
2684825 (7th Cir. Sept. 14, 2007).
DISMISSED FOR LACK OF JURISDICTION
No. 06-2441 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-10-07